Student groups and the 1st Amendment

First Amendment rights bumped up against questions of equal access and university policy in a Law Center discussion of a recent U.S. Supreme Court decision involving a student organization at Hastings law school. Law Center Professor Michael Olivas said he agreed with the critical importance of First Amendment rights as outlined by Doug Bandow of the Cato Institute during the debate sponsored by The Federalist Society, but the two disagreed on how far those rights should go.

In June, the court decided in CLS v. Martinez that the Hastings College of the Law can deny official recognition to the Christian Legal Society because the organization limits membership to those who sign and adhere to a “statement of faith.” The pledge requires acceptance of Jesus Christ as Lord and savior and condemns homosexuality as a sin. The school maintains an “all-comers” policy that requires open membership -- and leadership -- in student organizations to anyone interested in joining.

Bandow argued that organization members were being denied free association, equal access to university facilities, and expression of their religious convictions in a public forum. The organization, he said, was defined by the shared faith of its members and the school should be required to act as a “common carrier,” accepting all types of student groups.

Olivas wondered who gets to “trademark Christianity” and decide who qualifies for membership and who doesn’t? “Certainly not 19-year-olds,” said Olivas, who pointed out he studied eight years for the Catholic priesthood. “I would argue, ‘How dare you!’ Olivas said the whole point of student organizations is to foster democracy. “Letting in some Muslims or Mormons or, God forbid, Catholics is not going to hurt you. It won’t cramp your style. That’s the real world.” After the ruling, Olivas said, people told him, “We’re going to have Democrats taking over Republican organizations.” But he said he has found no instance of one student group “hijacking” another. “That does not happen and will not happen,” he said. “I would argue that this case is about reasonable accommodation. If you don’t want to meet these rules, you can meet off campus. You don’t need our support,” he said, adding, “You must be trying to make some other point.”

Bandow countered that the real point is whether like-minded 19-year-olds can get together and discuss their views. “The people who need protection are those whose views aren’t popular with the majority,” he said. “A takeover can happen when antagonism is greatest.”